Budget cuts create inequities in federal courts

An earlier version of this story incorrectly stated the pay for private lawyers assigned to defend indigent people in federal court. The correct rate is $125 per hour plus expenses.

San Diego  The offices for the prosecutors and staff of the U.S. Attorney’s Office and those for the Federal Defenders are separated by just a few bocks in downtown San Diego.

But the effects of the federal budget sequestration on each of the offices is being felt very differently.

For Federal Defenders of San Diego, a private nonprofit funded by the government to represent poor people charged with crimes, the cuts from the sequester mean its 59 lawyers and other staff members will each have to take a half-dozen unpaid furlough days.

Prosecutors in the U.S. Attorney’s Office were also facing the possibility of furloughs, but on April 25 Attorney General Eric Holder wrote in a memo distributed across the agency that the department won’t have to furlough any employees under sequestration.

The combination of some cost-cutting steps, a hiring freeze and mostly some last-minute shifting of money in the 2013 budget allocation means no one will be furloughed for this fiscal year, Holder wrote.

The move also means other Department of Justice agencies, including the U.S. Marshals Service and FBI, also won’t have to take unpaid days off.

San Diego federal defenders are not alone in feeling the bite of the sequestration cuts. Across the country, federal public defender offices will have to furlough employees for up to 25 days. That has fueled criticism that the budget cuts are unequal between prosecution and defense, and might over the long term undermine effective legal representation for the poor.

Moreover, furloughs and layoffs could delay cases working through the system and might end up costing taxpayers more money, said Reuben Camper Cahn, executive director of Federal Defenders of San Diego.

That is because more cases could end up being assigned to private lawyers who are paid $125 per hour on a case. While that is comparatively low for private defense lawyers, it is still more than it costs a federal public defender to handle a case, Cahn said.

“The institutional defenders are more efficient,” Cahn said. “As things go forward, we might see more cases handled by private lawyers and that will probably lead to increases in costs to the taxpayer.”

Staffing levels for the nonprofit, based on a caseload formula that weights cases based on how complex they are, also are below where the San Diego office should be, he said. The office should have 67 attorneys, not 59, under the formula, Cahn said.

The budding concern over the potential hits to defender offices might force Congress to act, said San Diego Chief Judge Barry Ted Moskowitz. “I think some accommodation will be made,” he said.

Earlier this year, with the possible furloughs in the U.S. Marshals Service, which provides security in federal courts, among other tasks, there was the potential that some courtrooms would not be open on certain days.

But with the funding for the Justice Department through the end of the fiscal year, that is no longer a concern, Moskowitz said.

“We’re OK for now, but what happens on Oct. 1 is another question,” he said.

The beginning of October marks the start of a new federal fiscal year, and it is unclear what kind of a budget deal might be in place by then.

“Few, if any, of the extraordinary actions we are taking now to avoid furloughs will be available next year, and thus furloughs are a distinct possibility at the beginning of the next fiscal year if sequestration levels continue,” Holder said in his memo.